PARISA RAGHAVULU Vs. BORRA KOTAYYA
HIGH COURT OF ANDHRA PRADESH
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(1.)THIS criminal revision petition is filed by the two accused against the judgment of the Additional First Class Magistrate, Tenali, in C. C. No. 169 of 1954 convicting and sentencing them each to pay a fine of Rs. 100/- with two months' rigorous imprisonment each in default. The complaint is that the marriage of accused l's son was performed with accused 2's daughter, that the bridegroom was aged about 16 while the bridge was aged about 12 and that the parents were consequently liable to be punished under Sections 5 and 6, Child Marriage Restraint Act (19 of 1929 ). There is no doubt that the marriage is a child marriage within the definition of the Act. It was contended on behalf of the accused that no marriage was performed but, on the evidence, the First Class Magistrate found that the marriage took place and no sufficient grounds are made out that the finding of fact arrived at by the Magistrate is erroneous. P. W. 7 deposes that an old Brahmin officiated as priest and that six dhobies including P W. 7 came to carry the palanquin. I therefore confirm the finding that a child marriage took place.
(2.)THE main contention urged by Sri G. V. Raghavayya on behalf of the petitioner is that the terms of Section 6 were not complied with and that it was not proved that the minors contracted a child marriage. Section 6 runs in the following terms:
(1) Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act' to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both: Provided that no woman shall be punishable with imprisonment.
(2) For the purpose of this section, it shall be presumed, unless and until the contrary is proved, that where a minor has contracted a child marriage, the person having charge of such minor has negligently failed to prevent the marriage from being solemnised. Section 2 (a) defines a child as meaning a person who, if a male, is under eighteen years of age, and if a female, is under fourteen years of age Child marriage means a marriage to which either of the contracting parties is a child. Minor means a person of either sex who is under eighteen years of age. The contention of Sri Raghavayya is that the prosecution has not proved that the two minors entered into a contract to get married and that consequently their parents are not liable to be punished under Section 6 of the Act. I do not agree with this contention. The expression "contracts" only means enters into. So, when a child marriage takes place or when two minors enter into a child marriage, the parents or guardians who did any act to promote the marriage or permitted the marriage to be solemnised or negligently failed to prevent it from being solemnised are liable to be punished under Section 6. Clause (2) of Section 6 raises a presumption that where a minor has contracted a child marriage, the person having charge of such a minor has negligently failed to prevent the marriage from being solemnised. The minors are incapable of entering into any valid contract and marriage lunder Hindu Law is no contract. So the words "where a minor contracts a child marriage" ought not to be literally interpreted but ought to be understood as meaning "where a child marriage takes place or where a minor enters into a child marriage. "
(3.)RELIANCE was placed by the petitioner's advocate on the decision in - 'munshi Ram v. Emperor' AIR 1936 All 11 (A) and it is true that the decision supports his contention. For the reasons already stated, I do not agree with that decision. In - 'bhagwat Sarup v. Emperor' AIR 1945 All 306 (B), Bennett J. , dissented from the view taken by Ganga Nath J, in AIR 1936 All 11 (A) and held as follows:
Learned Counsel for the applicants referred to a decision of a learned Single Judge of this Court in AIR 1936 All 11 (A) and founded thereon a contention with regard to the first words of Section 6, namely "where a minor contracts a child marriage. " The suggestion, I understand, was that the section applied only to cases where the child himself or herself entered into an agreement for the marriage, but I do not construe the words in this sense. I accept the construction of Bennett J. on the terms of Section 6 in preference to the construction placed by Ganga Nath J. I therefore hold that the parents are guilty and are liable to be punished under the terms of Section 6.
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